Toronto homicide investigators thought time was running out, so they turned to an extraordinary tactic.

Valda Williams breaks down as she leaves the funeral for her son Brenton Charlton Jr. (March 13, 2004)

By:Betsy PowellCourts Bureau, Published on Mon Jul 13 2009

Toronto homicide investigators thought time was running out, so they turned to an extraordinary tactic.

They believed they had exhausted all other investigative avenues and feared their main suspect in a 2004 drive-by shooting was poised to strike again in the Malvern area of Scarborough.

Tyshan Riley had been implicated in several shootings by confidential informants and even a friend. Meanwhile, police wiretaps of phones belonging to members of his hated rivals the Malvern Crew were buzzing with talk of Riley's incursions into the neighbourhood.

The wires picked up one unidentified man telling Malvern leader David Francis on March 31, 2004 that Riley had brandished his pistol "in my face" at the Malvern Mall.

So on April 15, 2004, Toronto police took the rare but legal step of intercepting Riley's phone calls without first obtaining a judge's permission.

While investigators wanted to prevent Riley from shooting someone, they felt they could build a better case against him if they tapped his lines and kept him under surveillance. Unfortunately, it didn't work out that way.

In fact, the judge at the trial where Riley stands accused of murder has described that police decision as "ill-conceived."

Arresting Riley, "a man with a serious record for violence ... would have succeeded in preventing him from shooting anyone else," Superior Court Justice Michael Dambrot concluded last summer in a ruling that up until now has been covered by a publication ban.

Instead, the now 26-year-old leader of the Galloway Boys was arrested April 19, 2004 in a high-risk takedown about 90 minutes after allegedly shooting two teenagers in broad daylight at a townhouse complex in Malvern. The young men, who were not gang members, were each hit multiple times but survived.

One of the intercepted communications "apparently captured Riley describing the shooting ... as it happened," Dambrot wrote in a separate ruling released last October.

At the time of his arrest, Toronto-born Riley was the main suspect in a drive-by shooting six weeks earlier. Brenton "Junior" Charlton, 31, who worked at SkyDome, died in the attack at Finch Ave. E. and Neilson Rd. Leonard Bell, a renovator who is now 48, survived and testified before a jury that began its deliberations yesterday following an eight-week trial.

The Crown alleges Riley and his accomplices had mistaken Charlton and Bell for gang rivals who lived in northeast Scarborough.

Jurors heard no evidence about the circumstances surrounding the April 19 arrest of Riley and his co-accused, Phillip Atkins, also 26. The jury was also unaware that Crown witness Marlon Wilson was also charged in the double shooting. He denied having anything to do with it – the charges were dropped – but implicated Riley and Atkins in that and other crimes before recanting.

The jury is deciding whether they are guilty of first-degree murder, attempt murder and committing both for the benefit of a criminal organization.

Jason Wisdom, 23, is also charged.

Nor did the jury hear that back in the spring of 2004, Toronto police had Riley under surveillance when they began intercepting his private communications and that officers "misplaced" the Audi he was driving on the morning minutes before he allegedly aimed his gun at the two teens.

During 14 months of pre-trial motions that began in February 2008, defence lawyers argued the interceptions, allowed under Section 18.4 of the Criminal Code "to prevent serious harm to persons or property in narrowly defined exigent circumstances," violated their clients right to be secure against unreasonable search and seizure as guaranteed by the Charter.

Since Section 184.4 was enacted in 1993, the Toronto Police Service reports it has used the section 19 times, usually in abduction or hostage matters.

Last year, Dambrot heard police witnesses testify about the reasons behind the warrantless interception that ran between April 15-19, 2004.

By Easter weekend that year, officer safety bulletins were warning "innocent people were being shot up in Malvern." Police believed Riley was behind several shootings.

But investigators believed arresting him would compromise their murder investigation, former homicide detective Al Comeau testified in March 2008.

It was, Comeau explained, a "balancing act," because investigators feared he might shoot someone but felt they had the best chance of collecting evidence if he remained out of custody. It was also a way to "keep tabs on him."

Defence lawyer David Midanik, who represents Riley, challenged Comeau's evidence on various fronts, suggesting at one point the "priority wasn't public safety but to get evidence."

As well, Midanik argued, police knew Riley was "arrestable," because surveillance teams watched him breach his bail conditions by ignoring his curfew and traveling east of Victoria Park despite being forbidden to do so.

On March 12, 2004, nine days after the Charlton/Bell shooting, Superior Court Justice Eugene Ewaschuk handed Riley a two-year sentence to be served in the community, as a result of a conviction for unauthorized possession of a firearm in a motor vehicle.

Comeau, who has since retired from the Toronto Police Service, acknowledged on the stand that police believe that "despite our best efforts" Riley shot two people.

"Had I known ... I might have done things differently," he testified.

In the end, Dambrot upheld the constitutionality of Section 184.4 but found the police erred when using it in this case.

"...It was far more likely that an arrest would have taken Riley off the street for a considerable period of time and so would have been more effective than intercepting his communications in preventing serious harm," Dambrot wrote.

There was a "perfect opportunity" to arrest Riley "easily and safely" when he appeared at the Oshawa courthouse on April 14, Dambrot noted.

Because of the breach, none of those conversations could be admitted as evidence, the judge decided.

However, with one exception, he rejected defence attempts to exclude "virtually all of the evidence collected by the police after the emergency intercepts."

Riley and Atkins are charged with two counts each of attempt murder and various weapons offences in connection with the April 19, 2004 shooting on Alford Cres.

A trial date is set for next spring.

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